Not every good case wins, but collective actions still matter

In another development for the collective competition regime the Qualcomm settlement judgment was handed down by Hodge Malek KC on 10 June 2026. 

A drop hands settlement was reached between the Consumers Association, Which? (the “Association”) (the representative), and Qualcomm after the trial concluded. Senior Partner, Anthony Maton reflects.

Obvious question: does this mean that the regime isn’t working? 

Quite to the contrary, it shows it is working very well.  As the Tribunal agreed, the case clearly had the merits to be taken to trial (p. 71/72).  It was only after trial that it became clear that the documentary evidence produced very likely hadn’t convinced the original Trial Tribunal in the absence of live witnesses from Apple and Samsung. As both this Judgment and the CJC in their recent report on funding etc (p. 6.57 to 6.71) make clear: losing a case at trial doesn’t make it a bad case.

Rather like the Champions League Final - losing didn’t make Arsenal a bad team. Litigation is a zero-sum game. You win or you lose at trial. The Association got to put the case on behalf of consumers, even if, ultimately, it was likely to have fallen short. Which is one of the fundamental reasons for the regime: to provide access to justice. Access, regrettably, doesn’t always equal success.

Qualcomm got to defend the case with all their considerable might, spending £44m of fees in doing so. If they had waited until Judgment then, assuming success, they would have recovered the element of those fees that the Court determined was reasonable and proportionate by (ultimately) the insurers for the claim. As it was, the defendant traded that likely right of fee recovery (and any adverse findings, for example on dominance) for the certainty of a settlement that guaranteed there would be no judgment against them, nor appeals - no doubt of importance as a publicly listed company facing litigation across multiple jurisdictions.

The Court recognised that the big losers were the funders and the lawyers acting for the Association (Hausfeld, for the record).  The consumers were able to bring the claim without risk. The funders in contrast lost their investment (p. 90), paying out £17.7m in costs, mostly to insurance, experts & counsel. Only 25% of this was paid to Hausfeld which only reimburses a fraction of our time spent on the case as the recovery rate results from a combination of a standard discounted hourly rates (a CFA) and supporting the case at 100% risk for the last two years to preserve the budget for counsel/expert costs and because we were committed to continue supporting the Association and consumers (p. 100/101). 

I am not asking for sympathy - we chose to run the case because we believed in it, knowing that there is always a risk in litigation and we have taken the rough with the smooth for over 15 years. But I am asking for an understanding from decision makers that no-one on the claimant side is getting rich running a portfolio of these cases on this basis that includes, inevitably, winners and losers as well as budget and funding constraints.

There is a further serious point that is emerging in these cases – which is the challenge of proving allegations in good indirect consumer claims, where there is inevitably no direct claimant evidence, and it transpires that limited third-party evidence can be procured. Claimants are going to need to think carefully in light of recent experience about how they practically prove compelling case theories at trial, particularly with the weight given to oral evidence at trial, where procuring third party evidence proves to be at risk/ nigh on impossible. One for further consideration.

But for those watching in black and white, we can dismiss the idea that here is another case that settled high and easy because of the illegitimate pressure of the opt-out procedure (cf. the USA) (p. 87). And when working on a CFA and/or 100% risk, it is paramount we bring meritorious claims even, as shown in this case, they do not guarantee success.

In contrast of course, the Kent v Apple collective action in relation to the App Store – and for which we won litigation team of the year at the 2026 Lawyer Awards last week – did succeed at trial. Proof positive that good things for UK consumers are coming out of the regime.”